The Parti Quebecois government has come and gone, and people may remember the March 31 announcement that Pauline Marois planned to invoke the notwithstanding clause as merely one more political ploy gone bad in a disastrous campaign.
That would be a mistake, because invoking the notwithstanding clause is a poisoned chalice and a repudiation of the rule of law.
The odious move, as some had dubbed it, had and continues to have legal consequences that are inseparable from the question about whether we live still in a just society built on the bedrock of a human rights culture. By labelling the proposed use of the Canadian Charter of Rights and Freedoms’ notwithstanding clause as merely “political”, politicians and pundits miss a critical point.
It signals that fundamental rights and freedoms can become dispensable political bargaining chips that are available for sacrifice in the interests of short-term political gain, in the Quebec case, one that was fuelled by xenophobia and an appeal to cultural if not nativist appeals of Quebec identity. The government had argued that it just needed a two-step to achieve its goals: amend Quebec’s own rights charter (which also protects equality and religious rights), and use the notwithstanding clause to duck out of the obligation to respect Canada’s fundamental rights document, the Charter.
But this strategy ignored the fact that no government can ‘notwithstand’ itself out of international law. Bill 60 was also a violation of the International Covenant on Civil and Political Rights, among many other international human rights obligations that Canada has ratified and that Quebec has agreed to. There is no equivalent ‘notwithstanding’ clause in any such instruments and Canada has not issued reservations in respect the applicable provisions in the ICCPR.
International human rights law does allow governments to derogate from certain rights, but only in cases of public emergency. It is unlikely that Quebec’s identity crisis would qualify. Even if it did, states are never permitted to take discriminatory measures that strip citizens of their equality rights. What this means is that the notwithstanding clause should be read with international law in mind, and used only as permitted, in accordance with our international obligations.
Governments that are tempted to use the notwithstanding clause in future might also bear in mind a pre-Charter federalism case that has been rendered newly relevant.
In 1938, long before the existence of constitutionally posited rights and freedoms, the Supreme Court of Canada was asked to consider the legality of a series of statutes in Alberta that sought to introduce radical social and economic structures. One of those statutes severely limited the rights of the press and of free expression. Mr. Justice Canon wrote:
The… provisions of the Press Bill have a tendency to nullify the political rights of the inhabitants of Alberta, as citizens of Canada, and cannot be considered as dealing with matters purely private and local in that province… No province has the power to reduce in that province the political rights of its citizens as compared with those enjoyed by the citizens of other provinces of Canada.
When fundamental human rights and freedoms are at stake, the political calculus should never be the main yardstick against which the legal reality of the notwithstanding clause is measured. Used as a campaign platform, it announces the intent to do irreparable harm to our shared citizenship, to Canada’s constitutional fabric, to our international reputations, and to the rights of those who are targeted.
Hopefully, the resounding defeat of the Parti Quebecois, partly the result of the highly divisive and discriminatory debate around Charter of Values, will serve as a cautionary tale.
The use of the notwithstanding clause is not only a political issue, it is also a legal issue and a fundamental human rights issue. It should be part of a broader national conversation in which we are all participants – regardless of our province of residence – and not merely critical onlookers. The use of the notwithstanding clause should never be invoked to justify violations of fundamental rights and freedoms in Canada except as permitted by international human rights law.
Pearl Eliadis is a human rights lawyer and teaches at McGill University. She is President of the Quebec Bar Association’s Human Rights Committee. The views expressed are her own. Her new book is Speaking Out on Human Rights (McGill-Queen’s University Press).
Ken Norman is a professor of law at the University of Saskatchewan and was the first Chief Commissioner of the Saskatchewan Human Rights Commission. He is co-editor of 14 Arguments in Favour of Human Rights Institutions (Toronto: Irwin Law, 2014)